SW, R. v

In a multi-count sexual-offence trial, evidence on one count cannot be used generally to support every other count merely because the allegations concern sexual misconduct within a family. The jury requires a clear and tailored direction on cross-admissibility, identifying the relevant groups of allegations and the limits on propensity reasoning.

Substantial differences in the nature, seriousness and timing of allegations may make their joint trial prejudicial. A generic direction, which invites the jury to form an overall impression of guilt without adequate guidance, may render convictions unsafe.

The appellant was convicted at Liverpool Crown Court of three rapes, indecent assaults, indecency with a child, and sexual activity in the presence of a child. He received sentences of imprisonment for public protection on one rape count and on two counts of sexual activity in the presence of a child.

He appealed the rape convictions. The principal complaint was that the judge had permitted evidence from all counts to be used generally as propensity evidence, without properly distinguishing the allegations. The rape allegations concerned conduct when the appellant was an adult against a young niece. The remaining allegations involved different conduct, complainants and periods, including alleged touching of his sister more than 20 years earlier.

The central issue was whether the jury had received adequate directions on the cross-admissibility of the evidence.

1. Appeal allowed. The convictions for rape on counts 1 to 3 were unsafe and were quashed. The court granted leave to appeal against the remaining convictions on counts 4 to 10 and 14 to 15, and quashed them also.

2. The court considered that the rape allegations should have been severed from the remaining allegations. There was a substantial gulf between them in seriousness, culpability and time. The rape allegations involved an adult and a child, whereas other counts concerned alleged indecencies of a materially different character, including conduct more than 20 years earlier.

3. Even if the counts remained on one indictment, the jury needed a clear direction explaining which evidence could be used across which counts. The summing-up instead stated the issue in the widest terms. It allowed evidence from one complainant to support another count if the jury found no collusion or contamination and was sure of that complainant's truthfulness.

4. That direction did not identify the distinct groups of allegations or explain the significance of the differences between the rapes and the other alleged conduct. It created a risk that the jury would decide the case by an impermissible overall impression of whether the appellant had behaved sexually improperly, rather than by separately assessing the evidence on each count.

5. The court distinguished R v D, P and U [2011] EWCA Crim 1714. That case concerned a possible progression from viewing child pornography to physical abuse. It did not justify treating the markedly different allegations in this case as mutually supportive propensity evidence.

6. The judge also gave no direction on the use, if any, of evidence from a complainant whose associated counts had been withdrawn from the jury. The inadequate directions on the all-important issue of cross-admissibility made the verdicts unsafe. The Crown was invited to state its position on a retrial.

• Court of Appeal (Criminal Division). Allowed the appeal and quashed the convictions: [2011] EWCA Crim 2463.
• Crown Court at Liverpool. The appellant was convicted on 22 January 2008 and sentenced on 11 February 2008.